Codell Construction Co. v. White

• Decision Date: 05 December 1933
• Citation: 251 Ky. 574
• Parties: Codell Construction Co. v. White.
• Court: United States State Supreme Court — District of Kentucky

251 Ky. 574

Codell Construction Co. v. White.

Court of Appeals of Kentucky.

Decided December 5, 1933.

1.

Master and Servant. — In action for death of employee burned by fire started in filling road machinery tanks with gasoline with aid of lantern, evidence of employer's negligence held insufficient for jury.

2.

Master and Servant. — Employer is not insurer of employee against injuries.

3.

Master and Servant. — Master-servant relationship is based on contract, express or implied, and what constitutes negligence of master, as regards servant, depends on duties imposed by terms of contract.

4.

Master and Servant. — Administrator suing employer for employee's death had burden to prove actionable negligence on part of employer and that employee's injury directly resulted therefrom.

Appeal from Franklin Circuit Court.

MORRIS & JONES for appellant.

POLK SOUTH, Jr., for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing.

This appeal requires a review of a trial of an action before a jury by the administrator of William White against the Codell Construction Company, for the death of White, charged to have been the proximate result of the company's negligence. The Codell Construction Company, a corporation, in November, 1931, and prior thereto, was under a contract with the state highway commission to build the Frankfort-Owenton Highway, Franklin county, Ky. It was operating under the Workmen's Compensation Law (section 4880, Ky. Stats. et seq.): but whether White had accepted its provisions (section 4957, Ky. Stats.) does not appear. On October 28, 1931, White began work as a night watchman for the Codell Construction Company at a point on the Owenton pike, about four miles from his home and nine miles from Frankfort. His duty was to "grease," and also to fill with gasoline the tanks of, certain machinery from the time he began work in the evening and before the time for its use the next morning. He was provided with a five-gallon can with which to transport the gasoline from the gasoline storage tank to the tanks of the machinery, and for the purpose of pouring it into the tanks, he was furnished a funnel of the capacity of five gallons. The gasoline was drawn by a faucet at the bottom of the storage tank into the five-gallon conveyor and carried by White to the different pieces of machinery where it was poured into the tanks with the use of the funnel. The machinery, which he was employed so to supply with gasoline, consisted of three iron "mules," a shovel, and a compressor. Each tank of the "mules" held about eighteen gallons; that of the shovels about fifty or fifty-five. The quantity to fill tank of the compressor is not definitely shown. No officer of the Codell Construction Company was engaged in the construction or supervision of the construction of the highway, nor in controlling the machinery. The direction of the work of all employees and the handling of the machinery were under the control of a superintendent and other employees. The employees, after November 1st, quit work, left the machinery near the gasoline storage tank, about 4:30 p.m., and returned next morning and began their work between 6 and 6:30 a.m., except the superintendent, mechanic, and blacksmith, who almost invariably arrived at the place where the machinery was located, about daylight or before.

At the time White was employed, his brother, Walter Webster, and Ben McDonald were present. They heard White inform the superintendent that he desired the job of night watchman. They claim the superintendent at that time made these statements, "I am looking for this machinery to be oiled, greased and gassed, up ready to go to work when the men come of a morning"; "All I am looking for you to do is to grease and gas up and have this machinery ready to go to work when they come of a morning." Talbott, the superintendent, claims that he also stated to White, "You don't have anything to do, but watch the gasoline tank," and "We have three `mules' and a shovel there, if he would fill them up," "We would pay him $2.50 a night"; that "He could get there before dark and fill them up before dark at night or fill them up before they went to work in the morning after daylight" and that "He accepted employment under those terms." The brother of White, Webster, and McDonald claim they did not hear these statements of Talbott. Kirkland claims he heard Talbott one afternoon tell White "to gas up before dark and after daylight." Smith, the mechanic of the Codell Construction Company, claims that after White began his employment, White asked him for a lantern and next morning informed him, Smith, that he had found one when he directed White "to always fill (the gas tanks) before dark and if he did not get it done, he could fill after daylight the next morning." and that he, Smith, "warned him not to fill after dark." White was not furnished a lantern for any purpose whatsoever; nor was he furnished oil therefor by the Codell Construction Company, but obtained one owned by the Company, of his own accord to be used at his own direction. The employees of the Codell Construction Company disclaim any knowledge of his using the lantern while handling the gasoline or filling the tanks therewith, or of his intention to use it for that purpose. His use thereof, while handling gasoline or filling the gasoline tanks, was without the knowledge or consent of the other employees of the Codell Construction Company. The contrary is not attempted to be shown by the administrator. Some of the other employees of the Codell Construction Company knew he had obtained and was using the lantern, but had no knowledge or information that he was using it while handling or transporting gasoline from the storage tank to the tanks of the vehicles. The other employees of the company also disclaim knowledge of his handling or transporting and pouring the gasoline into the tanks of the vehicles he was to fill therewith, after dark or in the nighttime. The contrary is not shown by the evidence in behalf of the administrator. Travelers on the highway had observed White in the nighttime with the gasoline can in one hand and a lantern in the other, going from the gasoline storage tank to the vehicles.

On the evening of the 14th of November, White arrived at about 4 o'clock p.m. at the place at which he was to discharge his duties as night watchman, including the greasing of the machinery and the filling of the tanks with gasoline. The other employees of the Codell Construction Company, on placing the machinery where it was left for the night, departed for their respective homes. After their departure, until some time between 8 and 9 o'clock in the night, the whereabouts of White and what he was doing are not shown by the evidence. On that night between 8:30 and 9 o'clock, Wade Hampton and his wife were at home, about a quarter of a mile from where White was performing his duties as night watchman. They heard some one "hollering"; the person engaged in "hollering" came to their home and, one his arrival, they discovered it was White. He had a coat around his head, a couple of quilts and a comfort around him. To them White "said he was working up there and filling up a `mule' or truck or something, he spilled gas and got afire"; White was excited and literally broke into the house of the Hamptons. The Hamptons had been asleep, but were awakened by the "hollering" of White. Wade Hampton gave White a drink of water, and started with him in a car as quickly as he could, with the view of conveying him to the hospital. On the way, he turned him over to Wallace Johnson who had a closed car. White got into Johnson's car and was conveyed about six miles to the King's Daughters' Hospital at Frankfort. On his arrival it was discovered that his entire body was severely burned. He died, intestate, on the 15th day of November.

His administrator, on a trial before a jury, recovered $10,000. At the conclusion of the evidence in behalf of the administrator, and also at the close of all of the evidence, the company requested an instruction directing a verdict for it, and of the court's refusal to give the peremptory instruction, it now complains.

The administrator, to support the charge of negligence, theorizes thus:

"Gasoline vaporizes almost instantly upon coming in contact with oxygen. So that in common use, as soon as gasoline is exposed to the air, some of it, at least, always goes off in the form of vapor, which vapor, being heavier than the air, tends to sink. The gravest source of danger with respect to handling gasoline is that since this vapor sinks it is not readily perceptible to one standing, * * * because it is along the lower levels and close to the floor (surface), and if it is not agitated by the atmosphere so as to dissipate and blow away out of the room, is likely to be ignited by coming in contact with flame, the ignition causing an explosion. * * * This vapor, unless dispelled by a current of air and dissipated, is likely to travel considerable distance * * * and will almost inevitably contact with any flame."

And he postulates thus wise:

"The appellant created the unsafe place for the decedent (White) to work in, by bunching the machinery around the gas wagon, so as to create a field of gas fumes and vapor when decedent filled the `mule.' No doubt the appellant thought that it was making the decedent's work easier for him, in bunching the machinery around the gas wagon, with the exception of the shovel which could not be moved and was left on the grade. But, as a matter of fact, it was making the place more dangerous by reason of the vapors which the decedent knew nothing about, and...